In this case, the Supreme Court allowed the State’s appeal against a High Court Judgment in which the Refugee Appeals Tribunal was found to have erred in law in its approach to determining persecution. The Supreme Court allowed the State’s appeal on the basis that the tribunal member’s finding of no risk of persecution was not unreasonable (within the applicable standards of judicial review) and that the High Court was incorrect in finding that the extent of educational discrimination at issue in this case met the threshold of persecution required.

Facts:

The applicant in this case is a minor born in the State to parents of Serbian Askhali ethnicity in 2006. The basis of his claim for asylum is that the Askhali ethnic monority group are subject to widespread discrimination in Serbia and, in particular, that there was a risk that the applicant would not receive a basic education if deported to Serbia. The applicant’s first-instance application for refugee status was refused by the Office of the Refugee Applications Commissioner (ORAC), which was upheld at appeal stage by the Refugee Appeals Tribunal (RAT) in a decision given on 17th August 2009. The appeal decision was then subject to judicial review proceedings. Finding that the RAT erred in its view as to what consititutes persectution, due to evidence pointing to a sufficient level of educational discrimination to amount to persecution, the High Court quashed the RAT’s decision, delivered on 10th November 2011 (ED v. The Refugee Appeals Tribunal & anon [2011] 3 I.R. 736).

However, the High Court certified that the case “involved a point of law of exceptional public importance” and that in the matter of public interest, an appeal should be taken to the Supreme Court. The grounds on which an appeal was certified were [para. 1.3]:

Whether discrimination against the group to which a child belongs giving rise to a risk that the child would not get a basic education if returned to his country of origin must be found to amount to persecution within the meaning of Section 2 of the Refugee Act 1996?

Whether the High Court on an application for judicial review can substitute its own assessment of whether the contended for infringements of basic civil liberties amounted to “persecution” within the meaning of Section 2 of the 1996 Act for that of the Tribunal Member?

Whether the potential denial of a basic education is capable of constituting its sufficiently severe violation of basic human rights so as to amount in law to persecution?

The State filed an appeal to the Supreme Court and the applicant filed a cross-appeal in February 2012. The basis for the cross appeal was that the tribunal member had mistakenly relied on country of origin information from the wrong country and that further points raised on behalf of the applicant during the judicial review proceedings were not seen as necessary to be determined by the High Court (as the trial judge based his decision solely on the finding of educational discrimination).

Decision & Reasoning:

The Supreme Court began the analysis by discussing the case made on behalf of the RAT. In his overview [paras. 5.1 – 5.9] , Clarke J. stated that the substance of the RAT’s appeal was that the member who had conducted the appeal hearing had appropriately considered all of the material evidence before her with due regard to the principle that “sufficiently severe and persistent denial, by virtue of discrimination, of important social rights may amount to persecution for the purposes of refugee status”, before coming to a sustainable decision that there would be no risk of persecution for the purposes of granting refugee status.

The essence of the RAT’s case on the basis of this appeal was twofold. First, it was argued that the judicial review judge had impermissibly substituted his own view on the country of origin information for that of the RAT (in finding that there had been a sufficient level of educational discrimination established to amount to persecution, in contrast to the RAT’s finding of no persecution) and that the factual conclusions reached by the RAT should be regarded as sustainable. Secondly, the appeal argued that, on the basis of the factual conclusions made by the RAT being sustainable, that it was not appropriate to conclude that persecution had been made out as a matter of law.

On addressing the above points under the RAT’s case, Clarke J. emphasised that in the context of judicial review, “a court’s function is to determine whether the facts, as found by the administrative body, can be sustained on judicial review principles. It is not normally the function of a court to make its own findings of fact …”. [para. 6.3] In the High Court judgement on the judicial review proceedings, upon which this appeal is based, the trial judge found that the available country of origin information indicated that there was pervasive discrimination against Ashkali children in Serbia with regard to access to basic education, which would lead to a well-founded fear of persecution that was sufficient to quash the RAT’s refusal of refugee status. However the Supreme Court held that the RAT’s decision was not unreasonable and came within the range of conclusions available on the basis of the materials before it. Considering that the RAT’s conclusion came within the “appropriate range then it would not have been open to the trial judge to approach the matter on any basis other than that those facts are correct.” [para. 6.19] As such, the Supreme Court found that the trial judge was incorrect to conclude that the findings of fact of the tribunal member were not sustainable.

In order to reach a conclusion on the second core point of the RAT’s appeal (that a finding of persecution was inappropriate), Clarke J. deemed it necessary to first address the issues raised in the applicant’s cross-appeal, which suggested that there were additional grounds not addressed by the High Court, which could have sustained the quashing of the RAT’s decision.

One of the two grounds of the cross-appeal focused on the fact that the High Court did not assess whether the RAT’s decision was sustainable on the basis of the full range of discrimination asserted. This was because the High Court focused solely on education discrimination in quashing the refusal and, as such, saw no need to address further grounds. Discrimination on the basis of education could indeed reach the threshold of persecution, however, Clarke J. distinguishes between laws that explicitly deny education to certain groups and a series of circumstances or factors that may contribute to a person not obtaining an education, even in relatively developed socieities, such as economic disadvantage. The former, where the laws of the state directly prevent education, can constitute a denial of rights so fundemental as to meet the threshold of persecution [para 6.12]. The Supreme Court, upon review of the facts in the case at hand, determined that there was nothing to suggest that the applicant would be denied, by state action or inaction, the right to a basic education. Rather, Clarke J. found that the RAT had adopted the correct approach in that the tribunal member had assessed each area of alleged discrimination individually, taken into account the impact of cumulative discrimination, and had “exercised a sufficient level of care in analysing the materials before her”. [para. 7.6]

The second issue raised in the cross-appeal was that the Tribunal Member had mistakenly referred to country of origin information pertaining to Kosovo, as opposed to Serbia, which stated that UNHCR had ceased recommending that members of the Roma Ashkali community not be returned. In assessing the materiality of this confusion, Clarke J. found that there did not seem to be any information before the RAT which suggested that UNHCR had a position recommending against the return of Ashkali children to Serbia, which would of course be of material relevance to the case at hand. As such, no sufficient basis for quashing the RAT decision was determined and the applicant’s cross-appeal was dismissed.

On a final note, Clarke J. highlighted that the process in the case at hand has been ongoing for over eight years. Considering that the applicant was 10 years old at the time of judgement, was born in Ireland and knows no other country, there were significant humanitarian considerations to be taken into account. Reiterating his conclusion that the decision of the RAT should not be quashed, Clarke J. nonetheless points out that there is “a very strong case indeed for suggesting that the authorities who have jurisdiction to consider all matters concerning the applicant should have high regard to those humanitarian concerns before deciding on any matter relating to his future.” [paras. 8.1 – 8.2].

Outcome:

The State’s appeal against the High Court decision was allowed; the applicant’s cross-appeal was dismissed, and the Court expressed that there were significant humanitarian concerns that should be taken into account by relevant authorities in matters pertaining to the child’s future.

Observations/Comments:

The Supreme Court clarifies some aspects of judicial review procedure, namely that the High Court could not subsitute its own assessment of the facts for that of the tribunal member, where the tribunal member’s finding is within the acceptable range of conclusions open to him or her on the basis of given facts.

Other sources cited:

The Law of Refugee Status (Hathaway, Cambridge University Press, 2nd Ed, 2014);